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District Court of Appeal, Second District, Division 3, California.

CUCINELLA et al. v. WESTON BISCUIT CO., Inc. et al.*

Civ. 19391.

Decided: May 27, 1953

William W. Waters and Henry F. Walker, Los Angeles, for appellants. Hunter & Liljestrom, Los Angeles, for respondents.

Plaintiff brought this action for damages resulting from injuries sustained when she was struck by defendants' automobile. In a jury trial verdict and judgment were for defendants and plaintiff appeals.

The accident occurred on San Fernando Road, a north-south highway, a short distance south of the intersection of that portion of Lacy Street which extends westerly from San Fernando Road. Plaintiff left the office of the Riverview Laundry at the southwest corner of the intersection and walked easterly to the middle of San Fernando Road where she stopped because of vehicular traffic traveling north. A northbound truck passed her, a car or truck traveling south passed behind her, and plaintiff, being frightened, and without looking to the north, hurried toward the west sidewalk, a distance of about 28 feet. Defendants' car, traveling south, six or eight feet from the westerly curb, struck plaintiff before she reached the westerly curb. There was some question whether the path that plaintiff traveled to or from the middle of San Fernando Road was in a crosswalk. On her appeal plaintiff assigns as error the admission of evidence, over her objection, as to the average speed usually traveled by automobiles on San Fernando Road at the location in question. A police officer who had worked in the area for several months traveling by motorcycle or automobile gave testimony with reference to the location of certain signs designating the area as a 25 mile zone. On cross examination by defense counsel he was asked: ‘And it is a fact, is it not, that the normal and average rate of speed traveled by automobiles in that area is between 30 and 35 miles an hour?’ Over plaintiff's objection the witness answered that the average speed usually traveled by motorists was around 30 miles per hour. This evidence of customary practice was offered as proof that a speed of 30 miles an hour or thereabouts was not a negligent speed. It was error to admit it. The reasonableness of defendants' speed as an element of claimed negligence was to be determined from the circumstances of the accident without regard to the average rate of speed usually traveled by cars in the vicinity. It was said in Milton v. Los Angeles Motor Coach Co., 53 Cal.App.2d 566, 570, 128 P.2d 178, 180: ‘The law is well settled that mere custom or usage cannot make due care out of conduct that is in fact negligence under circumstances disclosed by the evidence. Phoenix Assur. Co. v. Texas Holding Co., 1927, 81 Cal.App. 61, 74, 252 P. 1082; Rudd v. Byrnes, 1909, 156 Cal. 636, 642, 105 P. 957, 26 L.R.A.,N.S., 134, 20 Ann.Cas. 124; Anstead v. Pacific Gas & Elec. Co., 1928, 203 Cal. 634, 638, 265 P. 487; Perry v. Angelus Hospital Association, 1916, 172 Cal. 311, 315, 156 P. 449; Robinet v. Hawks, 1927, 200 Cal. 265, 273, 252 P. 1045; Carroll v. Central Counties Gas Co., 1929, 96 Cal.App. 161, 165, 273 P. 875, 274 P. 594.’ See, also, Mehollin v. Ysuchiyama, 11 Cal.2d 53, 77 P.2d 855; Sheward v. Virtue, 20 Cal.2d 410, 126 P.2d 345; People v. Crossan, 87 Cal.App. 5, 261 P. 531; Wolfsen v. Wheeler, 130 Cal.App. 475, 19 P.2d 1004; Sanford v. Moreau, 249 App.Div. 915, 292 N.Y.S. 595; 61 C.J.S., Motor Vehicles, § 516, p. 271. Also, the fact that defendants' automobile was being driven faster or slower than the average speed usually traveled in the locality was a false quantity in determining the question of negligence of the driver. It would be a poor excuse for traveling at what could be found a negligent speed under the particular circumstances of the case for a driver to say: ‘I was traveling no faster than the average speed usually traveled by other drivers.’ ‘Average speed’ would be ascertained by adding a great number of assumed speeds, the highest, lowest and all between, and dividing the total by the number of factors used. It would be necessary, also, to take into consideration all the different conditions which affect the flow of traffic from time to time. The question was whether, in view of the condition of the highway, the traffic, and the ability of the driver to observe the presence of plaintiff in the street, the speed at which he was driving measured up to the requirements of reasonableness and prudence. Nothing could be more meaningless and irrelevant to the facts in issue than the officer's estimate of the average, usual speed of cars. However, we are of the opinion that the error in the receipt in evidence of the opinion of the officer was not prejudicial to plaintiff. Don T. Smith, driver of the car, testified that he was traveling 30 or 35 miles an hour. Drivers of cars following him testified to the same effect, and an expert witness testified from measurements of the skidmarks of defendants' car (62 feet) that it was traveling 36 miles per hour. Thus the admission of defendant Smith, and the other evidence, strongly indicated that his car was traveling at a higher rate of speed than the estimated average. If the jury considered the testimony of the officer as evidence which tended to prove or disprove negligence of the defendants, the fact that their car was traveling above the usual speed of other cars would have been more favorable to plaintiff than to defendants.

Error is assigned in the refusal to give plaintiff's requested instruction reading as follows: ‘While it is the duty of both the driver of a motor vehicle and a pedestrian, using a public roadway, to exercise ordinary care, that duty does not require necessarily the same degree of caution from each. The driver of a motor vehicle, when ordinarily careful, will be alertly conscious of the fact that he is in charge of a machine capable of projecting into serious consequences any negligence of his own. Thus his caution must be adequate to that responsibility as related to all the surrounding circumstances. A pedestrian, on the other hand, has only his own physical body to manage and with which to set in motion a cause of injury. While, usually, that fact limits his capacity to cause injury, as compared with a vehicle driver, still, in exercising ordinary care, he, too, will be alertly conscious of the mechanical power acting, or that may act, on the public roadway, and of the possible, serious consequences from any conflict between himself and such forces. And the caution required of him is measured by the possibilities of injury apparent to him in the conditions at hand, or that would be apparent to a person of ordinary prudence in the same position.’

What this instruction really says, and is intended to impress upon the jury, is that the motorist is using an instrumentality capable of causing serious injury; the pedestrian has ‘only his own physical body to manage,’ which ‘limits his capacity to cause injury’; therefore, the motorist must use greater care than the pedestrian to avoid an accident.

This supposed rule of comparative duties had its origin in statements of the court in Raymond v. Hill, 168 Cal. 473, 143 P. 743, a case in which a pedestrian walking in the street was injured when overtaken by an automobile. The court said, 168 Cal. at page 483, 143 P. at page 747: ‘While both parties are charged only with the exercise of the same degree of care, it is manifest that the amount of that care by law exacted of the driver of the motor vehicle is far greater than the amount exacted of the foot passengers. Of the driver of a vehicle under such circumstances, the law in terms requires that he shall not only give reasonable warning of his approach, but ‘use every reasonable precaution to insure safety.’' The reference was to § 3(3) of an act regulating the operation of motor vehicles, Stats.1905, p. 816, which required the driver of a motor vehicle when approaching a person, horse or other draft animal on a highway, to ‘give reasonable warning of its approach and use every reasonable precaution to insure the safety of such person or animal, and, in the case of horses or other draft animals, to prevent frightening the same.’ Other requirements were that upon a signal from the person in charge of a horse or other draft animal the motorist must stop, and if the horse is badly frightened, shut off his motor. Under that statute the maximum lawful speed was 20 miles per hour outside of cities or towns, 10 miles per hour in closely built up sections, and 15 miles per hour in other sections of the city. In speaking of the claim of motorists that foot passengers seemed to show an indifference to the law of self-preservation, the court said, 168 Cal. at page 483, 143 P. at page 747: ‘But nevertheless no person who has ever ridden in or driven an automobile can be unaware of one fact, and that is that pedestrians, and women particularly, are liable to sudden panic upon the unexpected approach of this terrifying machine.’ The remarks of the court with respect to the great care exacted of motorists when meeting or overtaking a pedestrian on the highway were related to the above quoted statutory requirement, for it was said, 168 Cal. at page 484, 143 P. at page 748: ‘The vital question for solution by the jury was whether the driver of the automobile used every reasonable precaution to insure the safety of plaintiff up to the moment she was struck.’ There was no statutory law at that time, nor to our knowledge has there ever been a requirement that a pedestrian must use every reasonable precaution to avoid being run down by an automobile. We therefore cannot disagree with the statement that under the 1905 statutes a motorist was required to use a greater amount of care in operating his vehicle than was demanded of a pedestrian as they approached each other; but the court was merely declaring and expressing approval of the statutory law, as applied to the facts of the case.

The 1905 statute did not impose any special duty upon motorists with respect to pedestrians except when they were being approached on the highway. The court did not state that under any other conditions the motorist must use greater care to avoid an accident than was required of a pedestrian. Nevertheless, the statements in Raymond v. Hill have been taken as authority for the general proposition that under all conditions a motorist has a greater duty of care than a pedestrian and a practice has developed of instructing juries to that effect. Weihe v. Rathjen Mercantile Co., 34 Cal.App. 302, 167 P. 287; Vedder v. Bireley, 92 Cal.App. 52, 58, 267 P. 724; Pinello v. Taylor, 128 Cal.App. 508, 514, 17 P.2d 1039; Dawson v. Lalanne, 22 Cal.App.2d 314, 70 P.2d 1002; Broun v. Blair, 26 Cal.App.2d 613, 80 P.2d 95; McNear v. Pacific Greyhound Lines, 63 Cal.App.2d 11, 146 P.2d 34.

When these cases were decided there was no law in force which imposed upon a motorist the strict requirement of care when approaching a pedestrian on a highway that was contained in the 1905 Act. That Act was repealed by the 1913 Motor Vehicle Act, Stats.1913, p. 639, and by § 20(h), p. 647, the duty of special care was limited to occasions when motorists would encounter horses being ridden or driven on the highway. The law at present is substantially the same. Veh.Code, § 532.

There has been a great deal of legislation pertaining to the operation of motor vehicles since the Raymond case. As between motorists and pedestrians the former have the right of way in certain conditions and in other conditions they must give way to pedestrians; but in modern times, or even in the days when the automobile was regarded as a ‘terrifying machine,’ no legislature has seen fit to declare that under all conditions a motorist must use greater care than a pedestrian to avoid an accident. It is significant also that commencing with 1913 each legislative revision of the law has either expressly or impliedly disapproved of the requirement of the 1905 statute which, as between a motorist and a pedestrian meeting on the highway, placed the former under a duty to use more than ordinary care.

The reasons for this are obvious: (1) The general principles of negligence have been deemed adequate; and (2) the law is, and should be, that a pedestrian has as great a duty of care to avoid being run down as a motorist has to avoid running him down. The result of negligence upon the part of either may be the mutilation or death of the pedestrian, and this is as well known to one as it is to the other. Of course, anyone who is manipulating a dangerous instrumentality must use greater care with it than is necessary with one that is harmless, but this comparison applies generally to possible injury to another as a result of its misuse. A motorist must use greater care to avoid running down a pedestrian than the latter need use to avoid damaging an automobile by being run over, but this is not the test as to their respective duties. In case of a collision between an automobile and a pedestrian the potentialities of the latter are material only as they concern his ability to avoid being hit. When contributory negligence is an issue the question is not whether the pedestrian used ordinary care to avoid damaging an automobile by getting himself run over, but whether he used ordinary care to keep out of the way of it. The instruction we are criticizing compares the duty of care required of a motorist in order to avoid injuring a pedestrian with that required of a pedestrian to avoid damaging the automobile and finds the former to be greater. It then fails to distinguish between the mere shadow of care that should be taken to avoid damaging the automobile and the very real care that should be exercised to avoid being run over, and says, in effect, that the pedestrian need be no more concerned for his own safety than he should be for the safety of the automobile. Both driver and pedestrian must exercise such care as the circumstances of the particular situation would demand of a careful and prudent person. Each must use his faculties and judgment in taking reasonable precaution to avoid an accident; each must be vigilant to observe the presence or the approach of the other; but neither is under a greater duty than the other to do what his situation and his capabilities demand of him in protecting himself and others from injury. The major concern of the motorist is that he must control his car so as to avoid maiming or killing the pedestrian. The major concern of the pedestrian is to avoid being run down. The instruction properly states the rule of extreme care that applies to one who is handling a machine that is capable of inflicting serious injury. It states the self evident fact that a pedestrian is less likely than the automobile to cause injury, and it says, in effect, that his duty of care is proportionate only to his ability to cause injury, thus ignoring his duty to take reasonable and prudent measures to avoid injury to himself. It is altogether illogical and a misstatement of the law to say that a pedestrian has less of a duty to protect his own life and limb than a motorist has to preserve them for him.

Plaintiff requested an instruction to the effect that the amount of caution required by law increases as does the danger that reasonably should be apprehended. The court refused the instruction. Plaintiff says that no equivalent instruction was given. Defendant merely replies that the rule was sufficiently stated in ohter instructions but does not take the trouble to point them out. In our own investigation we find that the court did instruct that ‘the amount of caution required to constitute ordinary care increases as does the danger that a reasonably prudent person, in like position, would apprehend in the situation.’ Although this was stated in an instruction which related to plaintiff's attempted crossing the street, it was elsewhere stated that the duty of the defendant in the exercise of ordinary care was the same as that of plaintiff. Although the instruction might well have been given its refusal was not prejudicial error.

No cause has been shown for disturbance of the judgment.

The judgment is affirmed.

SHINN, Presiding Justice.

WOOD and VALLÉE, JJ., concur.